U.S. Supreme Court Hughes v. Union Insurance Company, 16 U.S. 3 Wheat. 159 159 (1818)
Hughes v. Union Insurance Company
16 U.S. (3 Wheat.) 159
ERROR TO THE CIRCUIT COURT
FOR THE DISTRICT OF MARYLAND
Insurance on a vessel and freight "at and from Teneriffe to the Havana, and at and from thence to New York, with liberty to stop at Matanzas," with a representation that the vessel was "to stop at Matanzas to know if there were any men of war off the Havana." The vessel sailed on the voyage insured, and put into Matanzas to avoid British cruisers, who were then off the Havana, and were in the practice of capturing neutral vessels trading from one Spanish port to another. While at Matanzas, she unladed her cargo under an order from the Spanish authorities, and afterwards proceeded to Havana, whence she sailed on her voyage for New York, and was afterwards lost by the perils of the seas. It was proved that the stopping and delay at the Havana was necessary to avoid capture, that no delay was occasioned by discharging the cargo, and that the risk was not increased, but diminished.
Held that the order of the Spanish government was obtained under such circumstances as took from it the character of a vis major imposed upon the master, and was therefore no excuse for discharging the cargo, but that the stopping and delay at Matanzas were permitted by the policy, and that the unlading the cargo was not a deviation. This case distinguished from that of Maryland Insurance Company v. Le Roy, 7 Cranch 26.
This was an action of assumpsit brought on a policy insuring the ship Henry and her freight "at and from Teneriffe to the Havana, and at and from thence to New York, with liberty to stop at Matanzas." At the trial the plaintiff gave in evidence the representation on which the policy was made, which contained this expression: "We are to stop at Matanzas
to know if there are any men of war off the Havana." The vessel sailed from Teneriffe on 7 April, 1807, and on 7 June following put into Matanzas, in the Island of Cuba, to avoid British cruisers, which were then cruising on her way to and off the port of Havana, and which were then in the practice of capturing American vessels sailing from one Spanish port to another. On 6 July, as soon as the passage was clear, she proceeded to the Havana, whence, on 14 July, she sailed on her voyage to New York. On the 28th of that month she foundered at sea and was totally lost. The action was for the insurance on the vessel and freight from the Havana. The underwriters gave in evidence that while at Matanzas she unladed her cargo, and insisted that this was a deviation by which they were discharged. To repel this evidence, the plaintiffs showed that the stopping and delay at Matanzas were necessary to avoid capture, and therefore allowed by the policy, that no delay was occasioned by discharging the cargo; that the risk was not increased, but diminished by it, and that an order from the Spanish government had made this act necessary.
The court instructed the jury that unlading the cargo at Matanzas was a deviation which discharged the underwriters unless it was rendered necessary by the order of the Spanish government at the Havana. That in this case the order did not justify such unlading, and that the underwriters were consequently discharged. Under these directions, the jury found a verdict for the defendants. The plaintiff having excepted to the opinion of the court, the judgment
which was rendered in favor of the defendants was brought before this Court on writ of error.
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court, and after stating the facts, proceeded as follows:
At the trial, the cause seems to have turned principally on the necessity to unlade the cargo at Mantanzas produced by the order of the Spanish government at the Havana. As this Court concurs with the circuit judge in the opinion that this order was obtained under circumstances which take from it the character of a force imposed on the master and compelling him to discharge his cargo, and is therefore no excuse for such discharge, it will be unnecessary further to notice that part of the case. The question to be considered is that part of the opinion which declares that unlading the cargo at Matanzas, although it occasioned no delay and did not increase, but diminish the risk, was a deviation which discharged the underwriters.
In considering this question, it is to be observed that the termini of the voyage were not changed. The Henry did sail from Teneriffe to the Havana, and was lost on the voyage from the Havana to Baltimore. The policy permitted her to stop at Matanzas, and the purpose of stopping was to know if there were any men of war off the Havana. It would be idle to stop for the purpose of making this inquiry if it were not intended that the Henry might continue at Matanzas so long as the danger continued. The stopping and delay at Matanzas is then expressly allowed by the policy.
But, admitting this, it is contended that unlading the cargo is a deviation.
And why is it a deviation? It produced no delay, no increase of risk, and did not alter the voyage. The vessel pursued precisely the course marked out for her in the policy. In reason, nothing can be found in this transaction which ought to discharge the underwriters. If, however, the case has been otherwise decided, especially in this Court, those decisions must be respected.
In Stitt v. Wardel, 1 Esp.N.P. 610, it was determined that liberty to touch and stay at any port did not give liberty to trade at that port, and in Sheriff v. Potts, 5 Esp.N.P. 96, it was decided that liberty to touch and discharge goods did not authorize the taking in of other goods. These cases certainly bear considerable force on that under consideration, but they were decided at nisi prius, and seem to have been in a great degree overruled by the court in the case of Raine v. Bell, reported
in 9th East. In that case, under a policy to touch and stay at any place, goods were taken on board during a necessary stay at Gibraltar. The court was of opinion that as this occasioned no delay nor any increase or alteration of the risk, the plaintiff was entitled to recover. Between the case of Raine v. Bell and this case the Court can perceive no essential difference.
In the Supreme Court of Pennsylvania, Kingston v. Gerard, 4 Dall. 274 [omitted], a similar question occurred, and it was there held that unlading and selling part of her cargo by a captured vessel during her detention would not avoid the policy.
But it is contended that this point has been settled in this Court in the case of Maryland Insurance Company v. Le Roy, 7 Cranch 26. In that case, a liberty was reserved in the policy "to touch at the Cape de Verd Islands for the purchase of stock, such as hogs, goats, and poultry, and taking in water." The vessel stopped at Fago, one of the Cape de Verd Islands, and took in four bullocks and four Jackasses, besides water and other provisions, unstowed the dry goods, and broke open two bales, and took 40 pieces out of each for trade. The vessel remained at the island from the 7th to the 24th of May, although the usual delay at those islands for taking in stock and water when the weather is good is from two to three days. The weather was good during this delay, and the bullocks and jackasses encumbered the deck of the vessel more than small stock would have done. The Court left it to the
jury to determine whether the risk was increased by taking the jackasses on board, and directed them to find for the plaintiffs unless the risk was thereby increased. The jury found for the plaintiffs, and this Court reversed the judgment rendered on that verdict because the taking in the jackasses was not within the permission of the policy.
It is perfectly clear that the case of Maryland Insurance Company v. Le Roy differs materially from this. In that case, articles were taken on board which encumbered the deck of the vessel, and which were not within the liberty reserved in the policy. In that case too the insured traded, and the delay was considerable and unnecessary; the risk, if not increased, might be and certainly was varied. The judge therefore ought not to have left it to the jury on the single point of increase of risk by taking in the jackasses. Although the risk might not be thereby increased, the unauthorized delay and unauthorized trading during that delay, connected with taking on board unauthorized articles, discharged the underwriters according to the settled principles of law, and the Court does not say in that case that these circumstances were immaterial or without influence. The Court does not feel itself constrained by the decision in Maryland Insurance Company v. Le Roy to determine that in this case also, which differs from that in several important circumstances, the underwriters are discharged.
The Judgment is reversed and the cause remanded, with directions to issue a venire facias de novo.